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12383 results in International Trade Law

Page 551 of 620

Conceptual Foundations of Antitrust
  • Oliver Black
  • Published online:
    08 July 2009
    Print publication:
    03 November 2005
  • This is a philosophical study of concepts that lie at the foundation of antitrust - a body of law and policy designed to promote or protect economic competition. Topics covered are: the nature of competition; the relation between competition and welfare; the distinction between per se rules and rules of reason; agreements; concerted practices; and the spectrum from independent action to collusion. Although there are many legal and economic books on antitrust, this is the first book devoted to the philosophical scrutiny of the concepts that underpin it. No prior knowledge of philosophy is presupposed. The book is primarily directed at students, theorists and practitioners of antitrust, but will also be useful to lawyers, economists, philosophers, political scientists and others who have an interest in the discipline.

  • 1 - What is competition?

  • Oliver Black, King's College London
  • Book:
    Conceptual Foundations of Antitrust
    Published online:
    08 July 2009
    Print publication:
    03 November 2005, pp 6-32

  • Summary

    Overview

    It is a scandal of antitrust that neither its practitioners nor its theorists agree – in so far as they consider the question at all – on what competition is. Opportunistically, insouciantly or ignorantly, we still lurch among the five definitions that Bork identified decades ago: the process of rivalry; the absence of restraint over one firm's economic activities by another firm; the state of the market in which the individual buyer or seller does not influence the price by his purchases or sales; the existence of fragmented industries and markets; and – Bork's preferred definition – a state of affairs in which consumer welfare cannot be increased by moving to an alternative state of affairs through judicial decree. One response is to say that the plurality of definitions does not matter, because actions promoting or protecting one kind of competition promote or protect all the others. But there is no reason to believe that that is so. Another response is to say that we need different definitions in different contexts – say, cartels and mergers. But that by itself is unsatisfactory, for it fails to identify significant connections between the definitions. We must hope that there are such connections; otherwise antitrust is as incoherent as would be a body of law and policy that concerned banks and covered both financial banks and river banks.

  • Japan – Measures Affecting the Importation of Apples (WT/DS245): Report of the Panel

  • Edited by World Trade Organization
  • Book:
    Dispute Settlement Reports 2003
    Published online:
    13 December 2017
    Print publication:
    03 November 2005, pp 4481-4810

  • Summary

    INTRODUCTION

    In a communication dated 1 March 2002, the United States requested consultations with Japan pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”) and Article 19 of the Agreement on Agriculture, with respect to restrictions imposed by Japan on imports of apples from the United States.

    The United States stated that since 1994, Japan had applied quarantine restrictions on US apples imported into Japan to protect against the introduction of fire blight (Erwinia amylovora). These restrictions included, inter alia, the prohibition of imported apples from orchards in which any fire blight is detected, the requirement that export orchards be inspected three times yearly for the presence of fire blight, the disqualification of any orchard from exporting to Japan should fire blight be detected within a 500-metre buffer zone surrounding such orchard, and a post-harvest treatment of exported apples with chlorine. The United States alleged that Japan's measures were inconsistent with Article XI of GATT 1994; Articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.6, 6.1, 6.2 and 7 and Annex B of the SPS Agreement; and Article 14 of the Agreement on Agriculture. Consultations were held on 18 April 2002, but failed to settle the dispute.

    In a communication dated 7 May 2002, the United States requested the Dispute Settlement Body (“DSB”) to establish a panel pursuant to Article 6 of the DSU, with standard terms of reference as set out in Article 7.1 of the DSU. The US claims of inconsistency in their Request for the Establishment of a Panel were identical to those set out in their request for consultations, except for additional claims of inconsistency under Article 5.5 of the SPS Agreement and Article 4.2 of the Agreement on Agriculture, and omission of the previous claim under Article 14 of the Agreement on Agriculture.

  • European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil (WT/DS219): Report of the Panel

  • Edited by World Trade Organization
  • Book:
    Dispute Settlement Reports 2003
    Published online:
    13 December 2017
    Print publication:
    03 November 2005, pp 2701-3116

  • Summary

    INTRODUCTION

    On 21 December 2000, Brazil requested consultations with the European Communities pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), Article XXIII of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”) and Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti-Dumping Agreement”) concerning the EC anti-dumping measures imposed in respect of imports of malleable cast iron tube or pipe fittings from Brazil. The European Communities and Brazil held consultations on 7 February 2001, but failed to settle the dispute.

    On 7 June 2001, Brazil requested the establishment of a panel pursuant to Article XXIII of the GATT 1994, Article 17 of the Anti-Dumping Agreement and Article 6 of the DSU.

    At its meeting on 24 July 2001, the Dispute Settlement Body (the “DSB”) established a Panel in accordance with Article 6 of the DSU to examine the matter referred to the DSB by Brazil in document WT/DS219/2. At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference. The terms of reference are, therefore, the following:

    “To examine, in the light of the relevant provisions of the covered agreements cited by Brazil in document WT/DS219/2, the matter referred to the DSB by Brazil in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements”.

    On 5 September 2001, the parties agreed to the following composition of the Panel:

    Chairman: Mr. Maamoun Abdel-Fattah

    Members: Ms. Deborah Milstein

    Mr. G. Bruce Cullen

    Chile, Japan, Mexico and the United States reserved their rights to participate in the Panel proceedings as third parties.

    The Panel met with the parties on 4-5 December 2001 and 11-12 June 2002. It met with the third parties on 5 December 2001.

  • United States – Definitive Safeguard Measures on Imports of Certain Steel Products (WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258 WT/DS259): Report of the Appellate Body

  • Edited by World Trade Organization
  • Book:
    Dispute Settlement Reports 2003
    Published online:
    13 December 2017
    Print publication:
    03 November 2005, pp 3117-3260

  • Summary

    INTRODUCTION

    The United States appeals certain issues of law and legal interpretations developed in the Panel Reports, United States – Definitive Safeguard Measures on Imports of Certain Steel Products (the “Panel Reports”).

    The Panel was established by the DSB on 3 June 2002, pursuant to a request by the European Communities, to examine the consistency of ten safeguard measures applied by the United States on 20 March 2002 on imports of certain steel products. On 14 June 2002, pursuant to Article 9.1 of the DSU, the DSB referred to the Panel complaints on the same matter brought by Japan and Korea. On 24 June 2002, the DSB, pursuant to Article 9.1 of the DSU, also referred to this single Panel complaints on the same matter submitted by China, Norway, and Switzerland. On 8 July 2002, the DSB, pursuant to Article 9.1 of the DSU, also referred to this single Panel a complaint on the same matter submitted by New Zealand. On 29 July 2002, the DSB, pursuant to Article 9.1 of the DSU, also referred to this single Panel a complaint on the same matter submitted by Brazil.

    In their requests for the establishment of a panel, the Complaining Parties claimed that the ten safeguard measures applied by the United States on imports of certain steel products were inconsistent with the obligations of the United States contained in Articles 2, 3, 4, 5, 7, 8, 9, and 12 of the Agreement on Safeguards, Articles I, II, X, XIII, and XIX of the GATT 1994, as well as Article XVI of the WTO Agreement.

    The Panel issued eight Panel Reports—in the form of one document—that were circulated to the Members of the WTO on 11 July 2003. The Panel concluded, in all of the Panel Reports, that all ten safeguard measures imposed by the United States were inconsistent with the Agreement on Safeguards and the GATT 1994.

    In particular, the Panel found that:

    (a) the application of safeguard measures by the United States on imports of CCFRS, hot-rolled bar, and stainless steel rod was inconsistent with Articles 2.1 and 3.1 of the Agreement on Safeguards, because “the United States failed to provide a reasoned and adequate explanation of how the facts supported its determination with respect to ‘increased imports'”;

  • United States – Definitive Safeguard Measures on Imports of Certain Steel Products (WT/DS248, WT/DS249, WT/DS251, WT/DS252,WT/DS253, WT/DS254, WT/DS258, WT/DS259/R): Reports of the Panel

  • Edited by World Trade Organization
  • Book:
    Dispute Settlement Reports 2003
    Published online:
    13 December 2017
    Print publication:
    03 November 2005, pp 3273-4378

  • Summary

    INTRODUCTION

    Factual Background

    Initiation of Safeguards Investigation by the USITC

    On 22 June 2001, the USTR requested the initiation of a safeguard investigation under Section 201 of the Trade Act of 1974 to determine whether certain steel products were being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing products like or directly competitive with the imported products.

    Four broad groups of products were covered by this request:

  • (a) certain carbon and alloy flat products;

  • (b) certain carbon and alloy long products;

  • (c) certain carbon and alloy pipe and tubes;

  • (d) stainless steel and alloy tool steel products.

    • A number of products were excluded from the request. These included wire rod and line pipe (covered by existing Section 201 relief or specifically excluded in the Section 201 relief), certain OCTGs, certain stainless steel products, certain semifinished steel products, certain carbon and alloy flat-rolled products and certain tin mill flat-rolled products.

    The USITC initiated its investigation on 28 June 2001. Public notice of this investigation was published on 3 July 2001. It provided for hearings on injury commencing on 17 September 2001 and hearings on remedy commencing on 5 November 2001 and allowed for submissions of pre- and post-hearing briefs by interested parties.

    The United States notified the initiation of the safeguard investigation to the Committee on Safeguards on 4 July 2001 and this notification was circulated to WTO Members on 9 July 2001.

    USITC Injury Determination

    Pre-hearing briefs on injury were filed by 10 September 2001 and hearings took place from 17 September 2001 to 5 October 2001. Post-hearing briefs were allowed from 27 September 2001 to 9 October 2001 for the various steel products under investigation.

    To collect data, the USITC split the four broad product categories into 33 product classes:

  • (a) seven carbon and alloy flat products covering: (i) slabs; (ii) plate; (iii) hot-rolled steel; (iv) cold-rolled steel; (v) coated steel; (vi) GOES; (vii) tin- mill products;

  • (b) ten carbon and alloy long products comprising: (i) billets; (ii) hotrolled bar; (iii) cold-finished bar; (iv) rebar; (v) rails; (vi) heavy structural shapes; (vii) fabricated units; (viii) wire; (ix) nails, staples and woven cloth; (x) strand, rope, cable and cordage;

  • Introduction

  • Oliver Black, King's College London
  • Book:
    Conceptual Foundations of Antitrust
    Published online:
    08 July 2009
    Print publication:
    03 November 2005, pp 1-5

  • Summary

    Antitrust is a body of law and policy designed to promote, or at least to protect, economic competition. There are many legal books and many economic books on the subject, but so far as I know there is no other book devoted to the philosophical scrutiny of the concepts that underpin it. The idea of a philosophy of antitrust may seem abstruse, but there is nothing puzzling about it. Philosophy may be conceived as a set of meta-studies associated with first-order disciplines: for psychology there is philosophy of mind, for mathematics there is philosophy of mathematics, for moral thinking there is philosophical ethics, and so on. (This is not to say that the boundary between a discipline and its philosophy is, or should be, sharp; for example, some of the most interesting work in ethics in recent decades has been by philosophers who have engaged with practical moral issues.) For law there is philosophy of law, and different parts of the law are associated with different branches of its philosophy: one such branch is the philosophy of antitrust.

    The concepts studied in this book lie at the foundation of antitrust, but they are not peculiar to antitrust. Those of competition, agreement and joint action, for example, arise in various areas of theory and practice. I hope therefore that the book will interest people – economists, philosophers, political scientists and others – who have no special concern with antitrust.

  • Preface

  • Oliver Black, King's College London
  • Book:
    Conceptual Foundations of Antitrust
    Published online:
    08 July 2009
    Print publication:
    03 November 2005, pp vii-viii

  • Summary

    That slim and dispiriting publication Jobs for Philosophers made particularly brief and dismal reading in 1987, when I got my philosophy doctorate. The ratio of available posts in university philosophy departments to the people applying for them was said to be about one to 300. Assuming therefore that, even if I found such a post, it would be temporary and in the sticks, I proposed to myself a choice of non-academic jobs: an easy one that would leave me the time and energy to pursue philosophy in my free time or a challenging one that would absorb the energy I would otherwise have spent on philosophy. Partly because challenging jobs tend to be better paid, I chose the latter. As philosophers often do, I picked the law, and I now practise antitrust law and regulatory law. (A colleague tried to persuade me to go into tax law on the ground that it is ‘metaphysics with fees’.) The work is often challenging, but the philosophical itch persisted, so I have come to divide my time between law and philosophy. This book, a philosophical study of antitrust, thus connects my two halves.

    The book is a mixture of new work and a reworking and expansion of earlier material: ancestors of the text are cited in the bibliography at the end.

  • 2 - Competition and welfare

  • Oliver Black, King's College London
  • Book:
    Conceptual Foundations of Antitrust
    Published online:
    08 July 2009
    Print publication:
    03 November 2005, pp 33-61

  • Summary

    Overview

    Various arguments have been advanced in favour of economic competition. Some are consequentialist, for example that it encourages the survival of the economically fittest, others are deontological, for example that it embodies certain moral rights or political liberties. The argument usually invoked nowadays by theorists and practitioners of antitrust is a consequentialist one, that competition maximises welfare. (There is a debate, which need not be pursued here, as to whether the welfare in question is consumer welfare, as EC and US antitrust tends to assume, or social welfare, as Bork argues and as economists tend to maintain.) By the same token, antitrust – a body of law and policy designed to promote or protect competition – is defended by invoking its effects on welfare. This chapter has the purely iconoclastic purpose of calling into question the welfare-based argument for competition and antitrust. Crudely, the thesis is that ‘welfare’ has either a meaning in which welfare is valuable but competition does not maximise welfare, or a meaning in which competition does maximise welfare but the fact that it does so is no justification for competition, because welfare in this sense is not worth maximising. In that case competition and antitrust are either ineffective means to a valuable end or effective means to a worthless end.

Page 551 of 620